Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R. v. M.T., 2016 NUCJ 09

Date:
Docket:
Registry:

20160414
08-14-469
Iqaluit

Respondent:

Her Majesty the Queen

-and-

Applicant:

M.T.

________________________________________________________________________
Before:

The Honourable Mr. Justice Bychok

Counsel (Respondent):
Counsel (Applicant):

Benjamin Flight
Shannon OConnor

Location Heard:
Date Heard:
Matters:

Iqaluit Nunavut
December 4, 2015; January 29, 2016
Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11, ss. 7, 8, 10(b); Voir Dire;
Common Law: Powers of Police Incident to Arrest

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

DISCLAIMER PAGE
Anonymized Judgment Disclaimer:

This judgment has been anonymized to comply with

legislative requirements or at the discretion of the
authoring Justice to protect vulnerable parties. Letters
have been assigned at random.

Table of Contents
REASONS FOR JUDGMENT ................................................................................... 1
I. INTRODUCTION........................................................................................................... 4
II. FACTS ........................................................................................................................... 5
III. ISSUES ........................................................................................................................ 6
IV. THE LAW ..................................................................................................................... 6
V. ARGUMENTS .............................................................................................................. 7
A. Applicant ................................................................................................................... 7
B. Respondent .............................................................................................................. 8
VI. ANALYSIS ................................................................................................................... 9
A. Did the warrantless search and seizure of the swab constitute a breach of
sections 7 and 8 of the Charter?................................................................................ 9
B. Did the police violate the applicants section 10 (b) Charter right to counsel?
....................................................................................................................................... 16
VII. CONCLUSION ......................................................................................................... 18

I. INTRODUCTION
[1]

This application made pursuant to sections 7, 8, and 10(b) of the

Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Charter], pertains to charges of sexual assault and sexual touching
where it is alleged that the applicant penetrated the young
complainants vagina with his penis. During the investigation, a
member of the Royal Canadian Mounted Police [R.C.M.P.] obtained
and seized a penile swab [swab] from the applicant. This Charter
application hinges upon the legality of the procurement of that swab.

[2]

Counsel for the applicant originally filed an application for a stay of

proceedings pursuant to section 24(1) of the Charter. The applicant
alleged that the taking of the swab violated his rights pursuant to
section 8 of the Charter. The applicant also alleges that the police
should have given him a second chance to speak to his lawyer before
taking and seizing the swab. Their failure to do so, he states, violated
his section 10(b) Charter right to counsel. The applicant changed
counsel after written arguments were filed. Ms. OConnor, the
applicants second lawyer, took a different tack from her predecessor.
Although I have read the original written submission, I have
considered primarily Ms. OConnors oral arguments in coming to my
decision.

[3]

The Crown [the respondent] submits that the swab was obtained
lawfully as incident to the arrest of the applicant. Alternatively, the
respondent asserts, among other things, that any Charter breach
does not fit the criteria for the imposition of a stay of proceedings, or
for exclusion of the evidence. Crown counsel also changed during
these proceedings and the second prosecutor filed an amended
written argument. I have read the original written submission, but I
have primarily focused on Mr. Flights oral and written submissions.

[4]

The Court heard evidence in Iqaluit on December 4, 2015, and

January 29, 2016. Constable [Cst.] Joe Baines, Cst. Andrew
Kerstens, Cst. Allan Foster, Cst. Jenny MacKinnon, and Cst. Sedat
Kulafofsky testified for the respondent. The applicant elected not to
call evidence. The parties also filed an Agreed Statement of Facts.

[5]

The question raised by this application was the subject of a decision

in R v Saeed, 2014 ABCA 238, [2014] AJ No 739 (QL) [Saeed]. In
Saeed, the majority ruled that [s]uch a search cannot be justified,
without warrant, simply on the basis of being incidental to arrest,
without more. Leave to appeal to the Supreme Court of Canada in
that case was granted on April 30, 2015. The appeal was argued on
December 1, 2015. The Supreme Court reserved its judgment without
date. In the interest of moving this case along, counsel for both
parties have asked this Court not to wait for the Supreme Court to
rule. I reserved judgment. These are my reasons for decision.

II. FACTS
[6]

The complainant reported an alleged sexual assault to the R.C.M.P.

in Iqaluit close to midnight on the evening of September 14, 2014.
She identified the applicant as the suspect. She reported that the
applicant had raped her without a condom, and that he had ejaculated
inside her. In preparation for the arrest, Cst. Andrew Kerstens
contacted Cst. Alan Foster of the R.C.M.P. Major Crime Unit to seek
direction concerning the taking of a possible swab. He was told by
Cst. Foster that such a swab was akin to taking fingerprints, and that
no prior judicial authorization was required. Cst. Foster explained the
procedure to him. The applicant was arrested at approximately 12:48
a.m. on September 15th, at which time he was explained the reasons
for his arrest and his right to counsel. He was taken to the
detachment.

[7]

The applicant spoke to duty defence counsel at about 1:09 a.m. That
call lasted approximately fourteen minutes. Shortly afterward, Cst.
Kerstens told the applicant for the first time that he intended to swab
his penis for evidence. The procedure was explained to the applicant
and it was done in private. The applicants pants and underwear were
lowered only as far as was necessary to facilitate the procedure. The
applicant was allowed to swab himself with a swab moistened with
sterile water. He did so under the Constables guidance and
supervision. The procedure was neither audio nor videotaped. The
swab was seized as evidence and was sent for analysis.

[8]

The parties agree that the search and seizure of the swab at issue
were incidental to a lawful arrest.

III. ISSUES
[9]

Were the applicants section 7 and 8 Charter rights infringed when the
police obtained a swab from him?

[10] Were the applicants section 10(b) Charter rights infringed when the
police demanded the swab only after he had spoken with duty
counsel?
[11] If the answer to either question is yes, what remedies, if any, are
available to the applicant pursuant to section 24(1) of the Charter?

IV. THE LAW

[12] Section 7 of the Charter provides that:
Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.

[13] Section 8 of the Charter provides:

Everyone has the right to secure against unreasonable search or
seizure.

[14] Section 10(b) of the Charter provides:

Everyone has the right on arrest or detention
[]
(b) to retain and instruct counsel without delay and to be informed of
that right

[15] Section 24(1) of the Charter provides:

Anyone whose rights or freedoms, as guaranteed by this Charter, have
been infringed or denied may apply to a court of competent jurisdiction
to obtain such remedy as the court considers appropriate and just in the
circumstances.

[16] The onus of proof respecting sections 7 and 8 of the Charter lies with
the respondent to prove that the warrantless search was not illegal.
[17] The onus of proof respecting the alleged section 10(b) Charter breach
lies on the applicant.

V. ARGUMENTS
A. Applicant
[18] The crux of the applicants section 8 Charter argument is that the
common law does not permit the police to search for penile swabs
incidental to arrest. Nor, she asserts, should the common law be
extended to permit the seizure of this core DNA. The highly personal
nature of this information is shown by the possibility that swabs could
reveal the DNA not only of the applicant, but also of innocent third
parties who may have previously had consensual sexual relations
with the applicant. She asserts that strict legislative control in this area
is required.
[19] Counsel grounded her application upon the principles enunciated in R
v Stillman, [1997] 1 SCR 607, 113 CCC (3d) 321 [Stillman], and
Saeed. Stillman concerned the non-consensual seizure, from a young
person, of dental impressions, buccal swabs, hair samples, as well as
a tissue used and discarded by the youth. Saeed concerned the
taking of a penile swab from an accused who had been arrested on
an allegation of sexual assault. As I mentioned earlier, leave to appeal
to the Supreme Court of Canada in that case was granted on April 30,
2015. The appeal was argued on December 1, 2015.
[20] Counsel also argued that the search was not conducted reasonably.
The police made no effort to determine whether the applicant had
showered, changed his clothes, or gone to the washroom before he
was arrested. Therefore, the police did not have reasonable and
probable grounds to conduct the search. Counsel asserted that this
approach by the police violated the applicants strong residual
privacy interests. Consequently, the police breached the applicants
section 8 Charter rights.

[21] Furthermore, counsel argued that there was no excuse for the police
to fail to advise the applicant of their intention to conduct this nonroutine procedure before speaking with his lawyer. This was an
egregious failure to respect the law enunciated in R v Sinclair, 2010
SCC 35, 90 WCB (2d) 610 [Sinclair], and a breach of the applicants
section 10(b) Charter right. She noted that the police also failed to file
the requisite Report to Justice until one year and a half had passed.
These two failures of the police to respect the law of the land should
inform the Courts analysis of the unreasonable manner in which the
search was conducted.
[22] At this juncture, counsel says she is not seeking a remedy, but rather
a declaration that the applicants Charter rights were infringed.
B. Respondent
[23] The respondent argued that the taking of a penile swab constitutes a
strip search. He said the search was conducted reasonably as the
police acted in conformity with the requirements set out in R v Golden,
2001 SCC 83, 159 CCC (3d) 449 [Golden], and that these types of
searches are available at common law (R v Harasemow, 2014 BCSC
2287, 16 CR (7th) 32; R v Amey, 2013 ONSC 5108, 108 WCB (2d)
776; Saeed, McDonald, J. in dissent).
[24] The respondent argued further that the police could have sought a
general warrant to search pursuant to section 487.01 of the Criminal
Code, RSC 1985, c C-46 [Criminal Code], but that it was
unnecessary.
[25] In written argument, the respondent stated that the applicants section
10(b) Charter right was not breached. However, in oral argument, he
said the police did breach that right, but that the evidence should be
admitted.
[26] Alternatively, the respondent asserted that a reduction of sentence
upon conviction could be an appropriate Charter remedy.

VI. ANALYSIS
A. Did the warrantless search and seizure of the swab constitute a
breach of sections 7 and 8 of the Charter?
[27] This application turns upon the scope of the common law power
conferred on the police to seize evidence without warrant as incident
to a lawful arrest. There is no suggestion in the present case that the
applicants arrest was unlawful. Nor has any argument been raised
that the search was not incidental to a lawful arrest.
[28] As the applicant relied on Stillman and Saeed, it is necessary to
consider what each case decided. Stillman, as counsel for the
applicant noted correctly, dealt with the seizure without warrant of Mr.
Stillmans own bodily substances. The police took buccal swabs,
samples of his pubic and scalp hair, as well as his dental impressions.
The case made its way to the Supreme Court of Canada where the
majority ruled that the police did not have authority at common law to
seize these categories of samples incident to arrest.
[29] Specifically, counsel cited paragraph 43 of the decision of Cory, J.
writing on behalf of the majority in Stillman. That portion of the
judgment considered Parliaments codification of search and seizure
provisions for a suspects DNA. Of more relevance, I believe, are the
previous portions of Justice Corys judgment:
42 [] It has often been clearly and forcefully expressed that state
interference with a persons bodily integrity is a breach of a persons
privacy and an affront to human dignity. The invasive nature of body
searches demands higher standards of justification[] In addition, La
Forest, J. observed in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 431-32,
the use of a persons body without his consent to obtain information
about him, invades an area of personal privacy essential to the
maintenance of his human dignity. Finally, in R. v. Simmons, [1982]
2 S.C.R. 495, at p. 517, Dickson, C.J. stated:
The third and most highly intrusive type of search is that
sometimes referred to as the body cavity search, in which
customs officers have recourse to medical doctors, to x-rays, to
emetics, and to other highly invasive means.

10
Searches of the third or bodily cavity type may raise entirely
difference constitutional issues for it is obvious that the greater
the intrusion, the greater must be the justification and the
greater the degree of constitutional protection [Emphasis
added].

[30] Central to this analysis is the recognition by Dickson, C.J. that greater
intrusion requires greater constitutional protection. I shall return to that
idea momentarily.
[31] Cory J. addressed the Crowns argument that the taking of dental
impressions was analogous to the routine investigative technique of
fingerprinting. In rejecting that argument, Corey J. cited LaForest, J. in
R v Beare, [1988] 2 SCR 387, [1987] SCJ No 92, on the reduced
expectations of privacy of an accused upon arrest, at paragraph 45:
While some may find [fingerprinting] distasteful, it is insubstantial,
of very short duration, and leaves no lasting impression. There is no
penetration into the body and no substance is removed from it.

[32] I cite that paragraph because it is important to remember that upon

arrest for sexual assault, a suspect has a reduced expectation of
privacy respecting the possible presence of an alleged victims DNA
on his person. Furthermore, while some may consider swabbing a
penis to be distasteful, it is no more intrusive a procedure than
fingerprinting.
[33] I also believe it is important to recall that although there is language in
Stillman of general applicability, the decision did not address or
consider explicitly the seizure of a complainants bodily substances
from the person of an accused. The entire focus of Stillman turned
upon the use of a persons body without his consent to obtain
information about him [Emphasis added]. I understand that to mean
the search for, and seizure of, the suspects own bodily substances
and DNA, which everyone understands requires prior judicial
authorization. It did not, in my view, purport to refer to the search and
seizure for bodily fluids left by the complainant on the suspects body
where that search does not engage any intrusive procedure. Only in
the very broadest sense can that information be construed to be
information about him. To the extent that the presence of the
complainants fluids might give information about the suspect, it is, in
my view, at the very lowest end of the spectrum and does not require
the same level of constitutional protections as the intrusive
procedures contemplated in Stillman.

11

[34] I now turn to Saeed which considered the taking of a penile swab
incident to arrest and the question of the admissibility of the resultant
DNA analysis.
[35] Writing for the two justice majority in Saeed, Wilson, J. ruled that
Stillman governed the outcome. The majority judges stated:
55 [Stillman] cannot be distinguished on the basis that some of the
seized material there was obtained from within the body, namely the
dental impressions, whereas here the seized material was obtained
from the surface of the body, from the penis. The relevant question is
not whether the seizure occurs from the surface of or from within any
part of the body, but whether the nature of the area from which
material is taken is such that the search and resulting seizure may
infringe upon the persons bodily dignity in such a way as to constitute
the ultimate affront to human dignity[]
62 [] this is an area of the law that must be approached with acute
attention to the rights of the individual even though it must also be
attentive to the quite understandable needs and practicalities of law
enforcement and public protection[]

[36] While of persuasive authority, the majority decision in Saeed is not

binding upon this Court. I respectfully disagree with the foregoing
Stillman analysis for several reasons. First and most importantly, the
real issue here, the search for a complainants DNA on the body of a
suspect, was not argued before the Supreme Court in Stillman. That
case was concerned with the seizure from the suspect of his own
buccal substances, dental impressions, and hair follicles. These
samples could only be obtained by highly intrusive and penetrative
investigative procedures. The invasive nature of these procedures is
simply not analogous to swabbing a suspects penis.

12

[37] Nor do I agree that the taking of a penile swab is by definition an

ultimate affront to human dignity. There is some merit to the view that
In Canadian society, people generally identify themselves with their
bodies [Saeed, para 56]. But as a matter of principle, the
reasonableness of a law should not be confused with the manner in
which the police exercise their authority. I draw an analogy to the
seizure of fingernail scrapings. The common law has long held that
this procedure may be conducted incident to a lawful arrest.
However, it is possible to envisage scenarios where the scrapings
could be obtained unreasonably. The key criterion is not the part of
the body searched, but the manner in which that search is conducted.
Put another way, that one may envisage circumstances where the
taking of a penile swab may be unreasonable does not mean all such
procedures will offend the law.
[38] The majority in Saeed also stated that a search warrant was required
to obtain the sample in issue. However, in my view, there is no
statutory provision which authorizes the issuance of a search warrant
to obtain a penile swab from a suspect. I do not agree with the
respondent that such a warrant may be obtained pursuant to the
general search warrant provisions of section 487.01 of the Criminal
Code. Subsection 2 of section 487.01 provides that [n]othing in
subsection (1) shall be construed as to permit interference with the
bodily integrity of any person. Whether or not such a swab is an
interference with a suspects bodily integrity, it is an interference with
the suspects personal dignity. Significantly, the court in Saeed did not
identify a section 487.01 general search warrant as an available tool.
If state agents are to procure such a penile swab lawfully, their
authority to do so in the absence of legislation must be grounded in
the common law. Otherwise, their actions will breach the Charter.
[39] In considering this issue, I have been aided by the analytical
framework adopted by Cromwell, J. on behalf of the majority of the
Supreme Court of Canada in R v Fearon, 2014 SCC 77, 318 CCC
(3d) 182 [Fearon]. The Supreme Court in Fearon determined that the
search of a cell phone in Canada was within the scope of the common
law power to search incident to arrest. It is noteworthy that in Saeed,
Wilson, J. cited a 2014 decision to the contrary issued by the
Supreme Court of the United States (see paragraph 52).

13

[40] Fearon, it is true, dealt with a different form of privacy issue.

However, it reminds us that the common law is not set in stone. It is a
living construct developed by judges who follow and apply first
principles with guidance from extensive jurisprudence and precedent.
The common law must take account of, and reflect, changes and
developments in science and technology if it is to remain relevant as
well as retain the respect of the population. I have considered these
issues in the context of this application.
[41] Cromwell, J. succinctly outlined the analytical framework which
governs this Charter analysis. Cromwell, J. reminded us that a search
is reasonable pursuant to section 8 of the Charter if it is authorized
by a reasonable law and is conducted reasonably. The police have
long enjoyed the power to search incident to arrest, so the
reasonableness of the search must be determined on the basis of the
particular circumstances of the particular arrest. The court must
weigh the public purposes served by effective control of criminal
acts against respect for the liberty and fundamental dignity of
individuals. Ultimately, the court must conduct that analysis in a
manner that is consistent with section 8 of the Charter [paras 12-14].
[42] The common law has long permitted the warrantless seizure from a
suspect of fingerprints, swabs for gunshot residue, and finger nail
scrapings as incident to a lawful arrest. Save for the fact that a penile
swab requires exposure of the genital area, there is little to distinguish
that procedure from the others I have just mentioned. The taking of a
penile swab is a quick procedure, the body is not penetrated so there
is no interference with bodily integrity, and very little force is applied.
If the swab is taken in private in conformity with Golden, at paragraph
43, the impact on personal dignity is minimal and transient, and it
leaves no lasting impression. The real issue is whether the police
acted reasonably in the particular circumstances of this particular
arrest. For the reasons I shall now explain, I find that in appropriate
circumstances, the common law provides the police with authority to
obtain penile swabs from a suspect incident to a lawful arrest.
[43] It is settled law that strip searches incident to arrest are legal if the
police conform to the principles prescribed in Golden. These searches
are an exception to the well-known general rule that a warrantless
search is presumptively unreasonable under section 8 of the Charter.

14

[44] The facts of the present case most closely resemble the
circumstances which surround strip searches as the suspect must
partially undress. There is, of course, the added element that a sterile
swab is applied to the exterior of the suspects genitals once his pants
have been lowered. Seen in this light, it is should be obvious that the
common law principles governing strip searches will apply with due
consideration given to the added application of the sterile swab to the
suspects penis.
[45] The court must balance the interest of the individual to be secure from
arbitrary state interference with his person against the public interest
in securing the safety of police investigators and the preservation of
evidence which otherwise might be lost. As I noted above, a
warrantless search by police of a suspect will survive subsequent
Charter scrutiny by the Court if: it was authorized by law; if the
authorising law is reasonable; and, if the actual search was conducted
reasonably [R v Collins, [1987] 1 SCR 265, [1987] SCJ No 15].
[46] In this case, the parties concede that the applicants arrest was lawful,
and that the search and seizure was incident to his lawful arrest.
Despite the appeal by the Supreme Court of Canada for clear
legislative guidelines in this area, the law respecting strip searches
continues to be that expressed in Golden. I have applied the Golden
factors to the present case, and I have made the following findings of
fact:
a. The applicant had a reduced expectation of privacy having
been arrested lawfully on an allegation of sexual assault;
b. The search and seizure were related directly and logically to
the reason for arrest the police had reasonable and
probable grounds to believe that the DNA of the complainant
would be found on the penis of the applicant;
c. The search was not intended to seize any of the aplicants
bodily substances;
d. The search and seizure were conducted in good faith by the
investigator after he had consulted with the Major Crime Unit
and the Federal Identification Section;
e. The search was conducted at the R.C.M.P. detachment;
f. The search was conducted after the applicant had received
legal advice from duty defence counsel;
g. The search was conducted in private;
h. The search was conducted in the presence of only one
investigator, who was of the same gender as the applicant;

15

i. The applicant was allowed to lower his own clothing;

j. The applicants pants were only lowered far enough to
permit the procedure;
k. The applicant was allowed to apply the sterile swab himself;
l. The search was of extremely brief duration, between two to
four seconds;
m. The procedure did not penetrate the applicants body so it
did not interfere with his bodily integrity; and,
n. Any affront to the applicants personal dignity was fleeting
and minimal.
[47] I find that the search and seizure of the swab from the applicant was a
lawful exercise of the reasonable common law power of the police to
search for evidence incident to a lawful arrest, and that the search
was performed reasonably.
[48] I note that the ambit of the common law in this area has heretofore
been unsettled. While legislative guidelines would be preferable, this
is an appropriate case for the judiciary to refine the ambit of the
common law in this area. To ensure Charter compliance, the process
should, at a minimum, conform to the prerequisites required in
Golden. That said, this Court will not issue firm guidelines as every
case must be judged upon its own merits.
[49] This common law power strikes a reasonable balance between the
privacy interests of an accused and the public interest that crime
should be investigated properly and thoroughly. In the present case, I
have found that the search and seizure was conducted reasonably in
all the circumstances. I conclude, then, that the search and seizure of
the swab in the present case did not infringe the applicants section 7
and 8 Charter rights.

16

B. Did the police violate the applicants section 10 (b) Charter right to
counsel?
[50] Counsel for the applicant asserted that the police should have given
the applicant a second chance to consult with his lawyer before
having him submit to the taking of the contested swab. Cited in
support is Sinclair, one of the trilogy of custodial interrogation cases
released by the Supreme Court of Canada at the end of 2010.
Specifically, counsel pointed to the majority judgment authored by the
Chief Justice and Charron, J. where the court stated that non-routine
procedures such as submitting to a polygraph examination or
participation in a line-up will not generally fall within the expectation
of the advising lawyer at the time of the initial Charter section 10(b)
consultation [para 50]. In these situations, the Justices ruled, a
detainee would be entitled to further legal advice. Only in this way
would the detainee be able to make an informed decision whether or
not to co-operate with the police investigation.
[51] Significantly, the Supreme Court in Sinclair highlighted another
situation where the police would be obligated to facilitate further
consultation with counsel: whenever the investigation takes a more
serious turn as events unfold where the initial advice may no longer
be adequate to the actual situation or jeopardy faced by the detainee
[para 51].
[52] The Supreme Court stated further that the category of situations
where further consultation may be required is not closed [para 54].
The applicant invites this Court to extend this protection to this
accused in these circumstances.
[53] Counsel for the applicant reproached the police for not informing the
applicant, before he spoke to duty counsel, of their intention to take
the swab. Sinclair has been the law for over five years, she said, and
police are expected to stay informed of, and to act in accordance with,
developments in the law.
[54] While the respondent took the opposite view in written argument, the
respondent in oral argument conceded that the applicants section
10 (b) Charter right was violated, but that the evidence should be
admitted pursuant to section 24(2) of the Charter.

17

[55] Although no evidence was called pertaining to the use of this

particular technique in Canada, this Court does infer that the
technique is non-routine. The Court heard evidence that there is no
R.C.M.P. policy governing the technique. The very few reported cases
which have considered this issue are all recent. This was the
investigating officers first use of the technique. The Court also finds
that the state of the law in this area was uncertain at the time the
swab was taken and seized and it remains so today.
[56] Even though the procedure was non-routine, I find that the police did
not violate the applicants rights by not advising him of their intention
to seize a swab before he spoke to his lawyer. In making this finding, I
have considered the rule in Sinclair against the well-established law
that police need not suspend a search incident to a lawful arrest to
permit access to counsel.
[57] The applicant was arrested and detained lawfully on allegations of
sexual assault. Specifically, he was accused of rape. The police were
told the applicant had not used a condom. The police had reasonable
and probable grounds to believe that a penile swab would reveal the
presence of the complainants DNA. The search and subsequent
seizure of the penile swab were related directly and logically to the
grounds for arrest. The investigating police officer in this case acted in
good faith and only after consultation with the Major Crime Unit. No
increased jeopardy issues arise in these circumstances.
[58] Except for the location of the body part swabbed (which was
accounted for here by the use of the procedure mandated in Golden),
there is nothing in principle to distinguish a penile swab from other
routine investigative practices such as fingerprinting, swabbing the
hands of a suspect for gunshot residue, or the taking of fingernail
scrapings. Each one of those procedures is likely to result in the
seizure of a suspects DNA as an investigative by-product. As the
respondent correctly noted, Stillman considerations prevent the use of
a suspects DNA in these circumstances. Each one of these
techniques is a fleeting and minimal infringement of a suspects bodily
integrity.

18

[59] Having found that the police were permitted under the common law to
search for, and seize, the penile swab incident to the lawful arrest,
they were under no obligation to delay their search until after the
applicant had consulted with counsel. Nor were they required to
advise him of their intentions to do so before he spoke with counsel [R
v Debot, [1989] 2 SCR 1140, [1989] SCJ No 118].
[60] I conclude, therefore, that the police did not breach the applicants
section 10(b) Charter rights by not informing duty defence counsel of
the investigative procedure they intended to employ.
[61] If I am wrong in this Charter analysis, then I would follow the
reasoning of the majority in Saeed and admit the evidence despite
any Charter breach. To exclude the swab and the results of the
forensic testing would, in the words of Wilson, J. in Saeed, contradict
the truth seeking function of the administration of justice in the context
of a very serious offence. Doing so would adversely affect the repute
of justice long term as well as in this case. [para 71]. This ruling
applied the two-part Charter admissibility analysis set out by the
Supreme Court of Canada in R v Grant, 2009 SCC 32, [2009] 2 SCR
353 [Grant].
[62] To admit the evidence in the circumstances of this case would not
signal that this Court will sanction serious police misconduct or
negligence. On the contrary, not to admit the penile swab in this case
would undermine the confidence of Nunavummiut in the
administration of justice. In reaching this conclusion after a Grant
analysis, I have considered that the investigating officer acted in good
faith, the procedure was directly and logically connected to the
reasons for arrest in a very serious case, the search was performed
reasonably, and it was done at a time when there was some case law
affirming the right of the police to act in this fashion.

VII. CONCLUSION
[63] The Court rules that the applicant has not established that the police
violated sections 7, 8, or 10(b) of the Charter when they searched the
applicant incident to his lawful arrest, and when they seized the penile
swab without giving him the opportunity to seek further legal advice.
Therefore, no Charter remedies pursuant to section 24(1) are
available to the applicant.

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[64] The penile swab and the results of its DNA analysis are admissible as
material and relevant evidence against the applicant at his trial.

Dated at the City of Iqaluit this 14th day of April, 2016

___________________
Justice P. Bychok
Nunavut Court of Justice